Among other threats to his ex-wife, Anthony Douglas Elonis posted this on his Facebook wall:
If I only knew then what I know now, I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder.
At trial, Elonis’s ex-wife and co-workers all testified that they felt afraid from what he had posted, and viewed these posts as serious threats. Elonis was convicted for
making online threats via interstate commerce and sentenced to 44 months in prison, after the judge had instructed the jury that Elonis could be convicted so long as "a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual." (Elonis's defense was that, as a budding rapper, "Tone Dougie," he was merely engaging in artistic expression like Eminem.)
According to the Supreme Court, the judge employed too loose of a standard. In a 7-2 decision today, the court reversed Elonis's conviction, holding that prosecutors had to prove beyond a reasonable doubt that he intended his remarks as a threat or knew that his ex-wife would see it that way. (The court left open for another day whether he could be convicted if he were merely reckless as to how she would take it.)
Updated: Elonis has already served approximately three years in federal prison and was released in February 2014, so it is unlikely there will be further proceedings.
Much, much more below the fold, including why Justice Alito might be the only correct Justice here. Really.
I want to include one more of Elonis's threats for context here. As Chief Justice Roberts recounts, in his opinion for the court:
After viewing some of Elonis’s posts, his wife felt “extremely afraid for [her] life.” A state court granted her a three-year protection-from-abuse order against Elonis (essentially, a restraining order). Elonis referred to the order in another post on his “Tone Dougie” page, also included in Count Two of the indictment:
Fold up your [protection-from-abuse order] and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
that was improperly granted in the first place
Me thinks the Judge needs an education
on true threat jurisprudence
And prison time’ll add zeros to my settlement . . .
And if worse comes to worse
I’ve got enough explosives
to take care of the State Police and the Sheriff’s Department.
The statute didn't explain what
mens rea was required of Elonis, but that, according to the court (Roberts, Kennedy, Scalia and four liberals) didn't mean there was no standard:
The fact that the statute does not specify any required mental state, however, does not mean that none exists. We have repeatedly held that “mere omission from a criminal enactment of any mention of criminal intent” should not be read “as dispensing with it.” This rule of construction reflects the basic principle that “wrongdoing must be conscious to be criminal.” As Justice Jackson explained, this principle is “as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” The “central thought” is that a defendant must be “blameworthy in mind” before he can be found guilty, a concept courts have expressed over time through various terms such as mens rea, scienter, malice aforethought, guilty knowledge, and the like....
The parties agree that a defendant under Section 875(c) must know that he is transmitting a communication. But communicating something is not what makes the conduct “wrongful.” Here “the crucial element separating legal innocence from wrongful conduct” is the threatening nature of the communication. The mental state requirement must therefore apply to the fact that the communication contains a threat.
Elonis’s conviction, however, was premised solely on how his posts would be understood by a reasonable person. Such a “reasonable person” standard is a familiar feature of civil liability in tort law, but is inconsistent with “the conventional requirement for criminal conduct—awareness of some wrongdoing.” Having liability turn on whether a “reasonable person” regards the communication as a threat—regardless of what the defendant thinks—“reduces culpability on the all-important element of the crime to negligence,” and we “have long been reluctant to infer that a negligence standard was intended in criminal statute.” Under these principles, “what [Elonis] thinks” does matter.
And, as such:
In light of the foregoing, Elonis’s conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state. That understanding “took deep and early root in American soil” and Congress left it intact here: Under Section 875(c), “wrongdoing must be conscious to be criminal.”
There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat. In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient. Neither Elonis nor the Government has briefed or argued that point, and we accordingly decline to address it.
Justice Alito, concurring and dissenting, wishes the court had gone further and resolved the recklessness issue:
The Court’s disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction under 18 U. S. C. §875(c), an important criminal statute. This case squarely presents that issue, but the Court provides only a partial answer. The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. But the Court refuses to explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess.
This will have regrettable consequences. While this Court has the luxury of choosing its docket, lower courts and juries are not so fortunate. They must actually decide cases, and this means applying a standard. If purpose or knowledge is needed and a district court instructs the jury that recklessness suffices, a defendant may be wrongly convicted. On the other hand, if recklessness is enough, and the jury is told that conviction requires proof of more, a guilty defendant may go free. We granted review in this case to resolve a disagreement among the Circuits. But the Court has compounded—not clarified—the confusion.
There is no justification for the Court’s refusal to provide an answer. The Court says that “[n]either Elonis nor the Government has briefed or argued” the question whether recklessness is sufficient. But in fact both parties addressed that issue. Elonis argued that recklessness is not enough, and the Government argued that it more than suffices. If the Court thinks that we cannot decide the recklessness question without additional help from the parties, we can order further briefing and argument. In my view, however, we are capable of deciding the recklessness issue, and we should resolve that question now.
And how would he resolve it?
In the hierarchy of mental states that may be required as a condition for criminal liability, the mens rea just above negligence is recklessness. Negligence requires only that the defendant “should [have] be[en] aware of a substantial and unjustifiable risk,” while recklessness exists “when a person disregards a risk of harm of which he is aware.” And when Congress does not specify a mens rea in a criminal statute, we have no justification for inferring that anything more than recklessness is needed. It is quite unusual for us to interpret a statute to contain a requirement that is nowhere set out in the text. Once we have reached recklessness, we have gone as far as we can without stepping over the line that separates interpretation from amendment.
There can be no real dispute that recklessness regarding a risk of serious harm is wrongful conduct. In a wide variety of contexts, we have described reckless conduct as morally culpable. Indeed, this Court has held that “reckless disregard for human life” may justify the death penalty. Someone who acts recklessly with respect to conveying a threat necessarily grasps that he is not engaged in innocent conduct. He is not merely careless. He is aware that others could regard his statements as a threat, but he delivers them anyway.
Accordingly, I would hold that a defendant may be convicted under §875(c) if he or she consciously disregards the risk that the communication transmitted will be interpreted as a true threat. Nothing in the Court’s non-committal opinion prevents lower courts from adopting that standard.
Further, Alito calls bullshit on Elonis's efforts to protect himself via the First Amendment:
Elonis argues that the First Amendment protects a threat if the person making the statement does not actually intend to cause harm. In his view, if a threat is madefor a “ ‘therapeutic’ ” purpose, “to ‘deal with the pain’ . . . of a wrenching event,” or for “cathartic” reasons, the threat is protected. But whether or not the person making a threat intends to cause harm, the damage is the same. And the fact that making a threat may have a therapeutic or cathartic effect for the speaker is not sufficient to justify constitutional protection. Some people may experience a therapeutic or cathartic benefit only if they know that their words will cause harm or only if they actually plan to carry out the threat, but surely the First Amendment does not protect them.
Elonis also claims his threats were constitutionally protected works of art. Words like his, he contends, are shielded by the First Amendment because they are similar to words uttered by rappers and singers in public performances and recordings. To make this point, his brief includes a lengthy excerpt from the lyrics of a rap song in which a very well-compensated rapper imagines killing his ex-wife and dumping her body in a lake. If this celebrity can utter such words, Elonis pleads, amateurs like him should be able to post similar things on social media. But context matters. “Taken in context,” lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person. Statements on social media that are pointedly directed at their victims, by contrast, are much more likely to be taken seriously. To hold otherwise would grant a license to anyone who is clever enough to dress up a real threat in the guise of rap lyrics, a parody, or something similar.
The facts of this case illustrate the point. Imagine the effect on Elonis’s estranged wife when she read this: “ ‘If I only knew then what I know now . . . I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like a rape and murder.’ ”Or this: “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” Or this: “Fold up your [protection from abuse order] and put it in your pocket[.] Is it thick enough to stop a bullet?”
There was evidence that Elonis made sure his wife saw his posts. And she testified that they made her feel “ ‘extremely afraid’ ” and “ ‘like [she] was being stalked.’ ” Considering the context, who could blame her? Threats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace. See Brief for The National Network to End Domestic Violence et al. as Amici Curiae 4–16. A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech.
Justice Thomas, all by his lonesome, would've upheld the conviction below:
Knowing that the communication contains a “threat”—a serious expression of an intention to engage in unlawful physical violence—does not, however, require knowing that a jury will conclude that the communication contains a threat as a matter of law. Instead, like one who mails an “obscene” publication and is prosecuted under the federal obscenity statute, a defendant prosecuted under §875(c) must know only the words used in that communication, along with their ordinary meaning in context.
General intent divides those who know the facts constituting the actus reus of this crime from those who do not. For example, someone who transmits a threat who does not know English—or who knows English, but perhaps does not know a threatening idiom—lacks the general intent required under §875(c). Likewise, the hapless mailman who delivers a threatening letter, ignorant of its contents, should not fear prosecution. A defendant like Elonis, however, who admits that he “knew that what [he] was saying was violent” but supposedly “just wanted to express [him]self,” acted with the general intent required under §875(c), even if he did not know that a jury would conclude that his communication constituted a “threat” as a matter of law.
There is always a risk that a criminal threat statute may be deployed by the Government to suppress legitimate speech. But the proper response to that risk is to adhere to our traditional rule that only a narrow class of true threats, historically unprotected, may be constitutionally proscribed.
The solution is not to abandon a mental-state requirement compelled by text, history, and precedent. Not only does such a decision warp our traditional approach to mens rea, it results in an arbitrary distinction between threats and other forms of unprotected speech. Had Elonis mailed obscene materials to his wife and a kindergarten class, he could have been prosecuted irrespective of whether he intended to offend those recipients or recklessly disregarded that possibility. Yet when he threatened to kill his wife and a kindergarten class, his intent to terrify those recipients (or reckless disregard of that risk) suddenly becomes highly relevant. That need not—and should not—be the case.
Nor should it be the case that we cast aside the mental-state requirement compelled by our precedents yet offer nothing in its place. Our job is to decide questions, not create them.
What's the problem here? When
previewed the case last June, I turned to
one essay in particular from Amanda Marcotte:
Gaslighting is a common behavior used by abusers in order to control their victims. It usually takes the form of lying to her, insisting that her memories and perceptions of your behavior are not real, even though you know that they, in fact, are. Like constantly insulting someone and putting her down and then, when confronted with it, saying, “Oh, that wasn’t an insult. You’re just too sensitive.”
What’s interesting here is that gaslighting is now being used as a legal tactic. The posts sure do read as threats meant to frighten and intimidate—and a jury, when asked to consider them in that context agreed—but when confronted, he swears that they’re not, pulling this bullshit “rap lyrics” excuse out. (Some gaslighters try to see how far they can push the envelope, how obvious they can be with their bullshit and still get away with it, mainly to get that rush of power that you get being able to force people to submit to obvious lies. This seems like an example. Elonis is not a rapper, does not perform as one, and his wife says that he doesn’t even listen to rap music.) Gaslighting is why we can’t locate the definition of a threat inside the brain of the person issuing it. Most abusers are fairly good about lying when called out and the odds that many will admit they are trying to scare and control people with threats are pretty damn low in most cases.
Unfortunately, just because a gaslighter is being blatantly obvious in the eyes of a reasonable person doesn’t mean that he won’t have his defenders.
She's still right.